[ Mr. Humphreys had raised questions about Supreme Court’s verdict; residue of Colonial rule; and cultural practices in ancient India.]
Dear Humphreys , I think the verdict needs to be put in its perspective.
1. The Supreme Court of India does not pass Laws, nor does it frame rules under it. That is the function of the Parliament, the Legislative body. And, whenever a specific issue is litigated upon, the Judiciary examines the matter that comes before it, with reference to the relevant Laws in operation and in the light of the provisions of the Constitution of India.
In the present case; the Section 377 of the Indian Penal Code (IPC) framed in the year 1860, during the British Raj, is still in operation. It is a relic of the Colonial rule. It comes under the Federal list. This Section has neither been repealed nor amended by the Parliament. Going, strictly, by the Book, Homosexuality is still a punishable criminal offence in India.
It is quite a different matter that no one has been booked under that Section, so far; and, that in the popular perception being gay is not a crime, after all.
The Supreme Court has merely pointed out that gay relation is bad in law, as it stands at today.
After the recent verdict of the Supreme Court, the ball is now in the court of the Government of India. The Government has to take a quick action to repeal/amend/replace the Section either by getting it approved by the Parliament or by passing an Ordinance, on its own.
2. You mentioned about Indian ethos on Homosexuality. Yes; the Indian Society even in the ancient times did recognize gay relations; and, it had been tolerant about it. That Society did not consider homosexuals as perverts or sinners. They were described by the term tritiiya-prakriti or those of the third nature. And, that nature was not regarded un-natural .And, they were not blamed for not following heterosexual norms ; for they were born with that nature.
The KAMASUTRA of Vatsyayana does explain ‘tritiiya prakriti’ or third nature. The persons of third nature are of two kinds; one of the female kind and the other of the male kind (“dvividhaa tritiityaaprkritih, striiruupinii purusharuupinii ca.” 2.9.1). Vatsyayana goes on to say that among the Females, the “she”, who behaves like a woman, is to be employed for oral sex (“tasyaa vadane jaganakarma tadauparisht.akamm aachakshate” 2.9.3).As regards the ‘male kind’ of Female who has the desire for males, ‘he’ could take to the profession of massage-giver and thus coming into contact with males to satisfy them through oral sex (2.9.6-10). In this context, the act of auparisht.aka is described in detail in the Kama sutra. Else, ‘he’ could have lesbian relation with a Female of ‘she’ nature.
The Arthashastra of Kautilya did provide a place for the ‘third kind’ in its society. It even imposed a fine on those who persecuted a homoerotic person (3.18.4). Though their position was disadvantaged, and regarded ‘not ‘respectable’, they had the freedom to move about in the Society.
But, at the same time, the Hindu society recognized marriage as a credible institution to bring forth and raise a new generation of able, educated and responsible individuals who would contribute to the welfare and integrity of the society, carry forward its life and its traditions. The coming generation had duties not only to the living but also towards their departed ancestors. The householders’ life had three aspects : to fulfil his duties and obligations to the family and to the society (Dharma) ; to earn wealth to take care of his family and other dependents (Artha) ; and , to procreate children to take his place in the future society . The last mentioned was Kama (desire); it had in it both Dharma (duty) and Rati (sheer pleasure of sex act).
The homosexual relation, they said, provided only Rati – the sexual pleasure. And, it did not fulfil an obligation or a duty that could be of any benefit to the society. There, certainly, was also the perception that such relation was unhealthy for the institution of family. Therefore, the gay relation, though tolerated, was not accorded a high status; and, was placed below the legalized husband- wife relation in a marriage. The gay cohabiters did not enjoy the same rights as did the married heterosexual couples.
3. Coming to the present-day India, the solutions provided by their ancients have been jumbled up. The British who ruled India for nearly a century imposed upon the Indian people the then British taboos and prejudices. In the process, The Rulers criminalized homosexual relations through a Section of the Indian Penal Code (1860). As successive Indian Governments have been too slow to alter the Criminal Procedure Code, the section stating punishment for homoerotic contact has not been still eliminated from Indian Law.
There are loud voices arguing that Sex preferences are highly personal matters; and it is best left to the discretion of those involved. They should have the freedom to exercise their choice/s. There is also the question of the constitutional guarantee of life and liberty to all citizens of India. Yet; some are likely to fudge the question whether maintaining a Gay relation is a fundamental right?
This offending Section should soon be done away with; and, the traditional free outlook restored. Having said that; the mindset of the common people that is created over a century may not perhaps be so easily erased. There is a notion, largely unfounded, that gays are found a lot in fashion and film industry; and, not among the ordinary ones who slog.
The Rights of the Homosexual/Gay individuals seems to be one of the major agendas of social reforms in India today. The Supreme Court verdict has triggered uproar, putting the Government on the spot.
This tornado has caught the Indian Government at its worst time when: it has just suffered a severe drumming in the Elections held across North India (Delhi in particular) ; its popularity is at its Nadir; the inflation is at its Zenith (11.3 %); industrial production is down to 1.8%; the value of INR is going down the drain; and , its precious vote-banks are slipping away while it is apprehensive of the impending Lok Sabha elections.
Yet; the Government of India has to act and provide the initiative, rather hurriedly.
Let’s await Government’s response.
In the mean time, pressure may also be brought on Supreme Court to take a re-look at its judgment-suo moto.
4. The next question would be: while gay cohabitation may not be illegal, whether or not a gay marriage should be legalized; and, whether Gays should be legally allowed to adopt children. These contentious issues are bound to be debated hotly*. Many may argue that it is necessary to maintain some difference between gay partnership and heterosexual marriage, in the interest of society’s healthy growth. They might point out that children adopted by gays are very likely going to acquire a gay syndrome that would threaten the health of the family. There is , of course , no paucity of examples from Europe and America where the institution of marriage is almost on the verge of extinction.
There would also be others who assert that there should be no discrimination; and, increasing the population was no longer a necessity or a priority in today’s India. Therefore, they would say that gay marriages are in no way detrimental to Indian society.
In any case, TV Channels and Blog Sites are sure to be set ablaze with furious debates in the coming weeks. It will be the show-anchors’ delight.
[**Please also see a Research Paper on: The Effects of Same-Sex Marriage Lawson Public Health and Welfare by Handie Peng, Department of Economics, Emory University, Atlanta, GA. The paper is done with particular reference to USA. It hypothesizes that same-sex- marriage-ban may (i) foster intolerance for gays which may drive risky homosexual behaviours; and increased the syphilis rate (II) codify and signal traditional family values, which may raise the benefits of heterosexual marriage.]